We have just finished an immensely successful, if somewhat complicated, criminal justice improvement through our constitutionally, statutorily, and judicially administered reform of the cash bail system. As we have noted, this is a nationally significant reform of the early part of the criminal justice process that has and will avoid the unnecessary damage to livelihoods and families through the unfair cash bail system. (“One Year In, Bail System Not Perfect, But Much Better,” NJLJ, Jan. 15, 2018.)
Last month Gov. Christie signed three important pieces of legislation dealing with expungement, thereby implementing needed reforms at the end of the criminal justice process. These bills expand the number of people and types of offenses that are eligible for expungement, shorten the time people must wait to apply for expungement, permit several offenses occurring within a brief period to be expunged together, and move still further in the direction of shielding people from employer questions about their criminal records (“ban the box”). These reforms, of course, provide important further steps toward reintegrating those who have offended into our society for the benefit of not only them, but all of us.
Now it is time for at least one more step in the right direction. Under the authority of article II, paragraph 7 of our state constitution (“The Legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate”) the Legislature banned from voting anyone “(8) Who is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” This legislative decision is now out of step with the current criminal justice reform philosophy in both our state and the nation. (“Let Them Vote,” NJLJ, Feb. 9, 2004). The ban on voting has significant negative ripple effects in minority communities, where one former offender not being permitted to vote has wide influence on the failure to vote by extended family and friends. This effect has been demonstrated by serious social science research and continues to erode the status of those who have paid their debt to society.
The Appellate Division rejected a constitutional challenge to the voting ban, on a disparate impact theory, in 2005, stating simply “Because the statute in question is specifically authorized by the New Jersey Constitution, we affirm.” New Jersey State Conference-NAACP v. Harvey (App. Div. 2005). The argument had been that, despite this apparent constitutional authorization to the Legislature, the actual statute enacted had a serious disparate impact on minority voters in violation of our state constitution’s equality guarantees. Our Supreme Court denied certification. Now we have the report of the Law and Justice Transition Advisory Committee to Governor Murphy, dated Jan. 1, 2018, which states that “[r]esearch shows that voting helps facilitate rehabilitation and reduce recidivism,” that 94,000 people currently cannot vote because of criminal convictions; that half of those people are black; and that this constitutes 5 percent of the black voting-age population. The committee’s recommendation to the governor is to “[e[ndorse legislation to restore voting rights to people on probation, parole or other community supervision.”
We agree with that recommendation. Voting rights should be restored to individuals convicted of crimes who are no longer incarcerated. The impact of restoring voting rights to individuals while incarcerated should be studied. With a new administration, and New Jersey occupying a leadership position in the national spotlight of criminal justice reform, this unfair and damaging situation can now be easily remedied by our Legislature. We urge our legislators to move expeditiously with this next step in criminal justice reform.
Authored by Mike Tigas